GASU v NEW ZEALAND POLICE [2021] NZHC 2948

GASU v NEW ZEALAND POLICE [2021] NZHC 2948 [2 November 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-386[2021] NZHC 2948BETWEEN SELENI GASUAppellantAND NEW ZEALAND POLICERespondentHearing: 1 November 2021Appearances: A Naseri for the AppellantA Kempster for the RespondentJudgment: 2 November 2021JUDGMENT OF VENNING JThis judgment was delivered by me on 2 November 2021 at 2.15 pm, pursuant to Rule 11.5 of theHigh Court Rules.Registrar/Deputy RegistrarDateSolicitors / Counsel:Mr A Naseri, Public Defence Service, Henderson, AucklandMs A Kempster, Meredith Connell, Office of the Crown Solicitor, AucklandIntroduction[1] Seleni Gasu pleaded guilty to one charge of assault on a person in a familyrelationship. On 9 August 2021 Judge K J Glubb declined Mr Gasu's application fora discharge under s 106 of the Sentencing Act 2002.1 Mr Gasu appeals that decision.Background[2] The victim was Mr Gasu's partner. At the time of the offending they had beentogether for approximately two years. Mr Gasu's partner had a four year old childfrom another relationship, and they had a one year old daughter together. At the timeof the hearing before Judge Glubb his partner was seven months' pregnant.[3] On 1 January 2021 at approximately 11.00 pm the defendant and victim weretogether at a family gathering. The appellant had been drinking and becameintoxicated. The appellant's partner took exception to him dancing with anotherfemale family member and slapped him once to the face and then walked away. MrGasu then followed his partner into the garage of the address and slapped herforcefully to the face with an open palm, causing her nose to bleed. After a brief pausehe then slapped her three further times about the head. She raised her hands to protectherself. Mr Gasu stopped when other family members at the address intervened andphysically removed him.[4] As a result of the assault Mr Gasu's partner received swelling to her left templearea, bruising to her left hand where she had attempted to shield herself, a cut upperlip and a sore neck. She felt dizzy and was unsteady and an ambulance was called dueto those concerns.[5] In explanation Mr Gasu stated he punched her twice because he was angry thatshe had slapped him.[6] Mr Gasu has not previously appeared before the Court.1 Police v Gasu [2021] NZDC 16319.The District Court decision[7] Judge Glubb considered the domestic setting was an aggravating factor. MrGasu's partner was vulnerable and should have been safe in his company. However,he noted that, in her victim impact statement, she had said that being separated fromhim as a result of the incident had caused her stress and hardship and that she supportedhis application for a discharge without conviction. She did not seek a protection order.[8] The Judge considered the offending itself to be moderately serious. When hefactored in Mr Gasu's early guilty plea, his lack of previous convictions and remorse,and the steps he had taken to address his violence, he placed the offending in a lowmoderate range.[9] In addressing the direct or indirect consequences of the conviction the Judgenoted Mr Gasu was an overstayer and had no right to remain in New Zealand. He hadapplied under s 61 of the Immigration Act 2009 for a visa in the Minister's discretionbut that had been declined. The Judge considered that Mr Gasu would have an uphillbattle to remain in New Zealand but was not satisfied there was a real and appreciablerisk that a conviction would further damage his prospects.[10] Nor did the Judge consider that a conviction would be a barrier to employment.The Judge was not satisfied that the direct or indirect consequences of a convictionwould be out of all proportion to the gravity of the offence and accordingly declinedto grant the discharge without conviction. He then convicted Mr Gasu and sentencedhim to 60 hours' community work.Principles[11] An appeal against refusal to discharge without conviction is a composite appealagainst conviction and sentence.2[12] The test under s 107 of the Sentencing Act 2002 requires the Court to:32 Jackson v R [2016] NZCA 627.3 Z (CA 447/2012) v R [2012] NZCA 599.(a) identify the gravity of the offence, including the aggravating andmitigating factors of the offending and the offender;(b) identify the direct and indirect consequences for the offender; and(c) consider whether those consequences are out of all proportion to thegravity of the offending.[13] If the above criteria under s 107 are met the Court has a discretionary power todischarge under s 106.[14] An appeal against the Court's consideration of the issues under s 107 is anappeal against an evaluative decision rather than against the exercise of discretion.The appeal only involves consideration of a discretion if the lower Court came to theview that the criteria in s 107 were met but exercised its discretion not to discharge.4Appellant's submissions[15] Ms Naseri submitted that the offending was less serious than in Mathieson vPolice where the Court of Appeal had concluded a domestic assault was, in thecircumstances, of low seriousness.5 Counsel also noted that the incident had beeninstigated by the victim's action. When account was taken of Mr Gasu's personalmitigating factors, previous good character, genuine remorse, support from the victimand his rehabilitative efforts and guilty plea, Ms Naseri submitted the overall gravitycould properly be classed at the lower end of the scale from moderately serious tomoderately low.[16] Ms Naseri then addressed the consequences of conviction. She submitted thatthe main consequence was the effect conviction will have on Mr Gasu's immigrationstatus which will have a flow-on effect to his young family.[17] Mr Gasu arrived in New Zealand in September 2017 on a temporary visa buthas been unable to obtain a further visa to stay in New Zealand lawfully. He instructed4 Hughes v R [2008] NZCA 546, [2009] 3 NZLR 222.5 Mathieson v Police [2019] NZCA 406.an immigration lawyer, Mr Hoglund, who made application on Mr Gasu's behalf fora special visa under s 61 of the Immigration Act 2009 in June 2020. That applicationwas refused in July 2020. Mr Gasu's immigration status is that he is unlawfully inNew Zealand. But as yet, he has not been served with a deportation order or removalorder. Ms Naseri confirmed that was still the position.[18] To support Mr Gasu's application in the District Court counsel had obtained asupporting letter from Mr Hoglund. Mr Hoglund noted that Mr Gasu's options wereto request a further s 61 visa based on a change of circumstances or to returnvoluntarily to Samoa and file an application off-shore based on the support of his NewZealand partner. That second option was not attractive given Mr Gasu and hispartner's desire to remain together and the fact of her recent baby. Ms Naseri notedthat the partner had given birth to her second child with Mr Gasu in September andthey had recently married. She submitted that would support a renewed applicationunder s 61.[19] Mr Hoglund expressed the view that a conviction for domestic violence wouldhave a negative impact on any future immigration applications by Mr Gasu. If he wasable to stay in New Zealand, he would need to obtain a character waiver to support apartnership visa.[20] Ms Naseri argued that the consequences of conviction would be that Mr Gasuwould be deported. His children, born in New Zealand, would be left without theirfather for a period of at least five years as per the stand-down period if Mr Gasu wasdeported.[21] Counsel referred to the discussion of the impact of consequences ofconvictions in R v Tang,6 and the Court of Appeal decision of Bong v R,7 and submittedthat they supported a finding that the severity of a conviction for Mr Gasu's futureimmigration status was significant.6 R v Tang [2019] NZHC 2056.7 Bong v R [2020] NZCA 94.[22] In addition to the immigration issues counsel also submitted that the loss ofmana amongst his own extended family, and potential impact on employment wererelevant in Mr Gasu's case. Ms Naseri accepted they were not the principal groundsof the appeal but nevertheless they remained relevant.[23] Ms Naseri submitted that when all those factors were taken into account theconsequences of conviction would be out of all proportion to the gravity of theoffending. She submitted the appeal should be granted and the discharge granted.Analysis[24] In Mathieson v Police the Court of Appeal noted that the District Court had notapplied the correct approach because, in assessing the overall gravity of the offending,the Judge had not taken into account the very positive mitigating factors.8 Had thatbeen done, the result would have been a reduction of the assessment from moderatelyserious to low seriousness. The same criticism does not apply to the present case. TheJudge took into account the relevant mitigating factors.[25] On one view the assaults by Mr Gasu on his partner were more serious thanthe offending by Mr Mathieson in that he delivered a number of blows to her facewhich resulted in injuries. However, the blows were not accompanied by the threat asin Mathieson.[26] I consider the Judge was correct to initially assess the offending as moderatelyserious. However, as he noted, there were a number of other relevant and positivemitigating factors in relation to the offending and particularly, the offender whichreduced the overall gravity of the offence. The incident was initiated at least in partby the victim herself, and, as Ms Naseri submits, the overall gravity is reduced by thepositive mitigating factors of the early guilty plea, Mr Gasu's previous good character,his genuine remorse and support from the victim, his rehabilitative efforts and insightinto the offending. On my assessment, when those factors are taken into account the8 Mathieson v Police, above n 5.offending is properly characterised as of low to moderate seriousness. It cannot bedescribed as very low-level offending as in Bong v R.9[27] The real issue for the appellant is in relation to the consequences. There canbe no realistic suggestion given his current circumstances that a conviction will affecthis employment opportunity. He is unable to work as he is illegally in New Zealand.Nor is any stigma within the family a relevant factor. Any stigma would arise fromthe way Mr Gasu acted in front of his family rather than from any conviction.[28] The principal consideration is the direct and/or indirect consequences ofconviction on his immigration status, and whether such consequences would be out ofall proportion to the gravity of the offending, which is characterised as of low tomoderate seriousness.[29] Ms Naseri relied in particular upon the Court of Appeal decision in Bong.10Like Mr Gasu, Mr Bong was unlawfully in New Zealand. He had also unsuccessfullyapplied under s 61 for the exercise of the Minister's discretion. The Court acceptedthe evidence from an immigration consultant that a conviction would make it verydifficult for Mr Bong to persuade an immigration officer to exercise discretion tocancel a deportation order (if issued). Also, the need for him to obtain a characterwaiver would present a significant barrier to him gaining a visa in the future.11[30] However, in the recent Court of Appeal decision of Sok v R the Courtconsidered in more detail the correct approach to the consideration of theconsequences of a conviction on an appellant's immigration status.12 First, the Courtnoted that the reference under s 107 to the direct and indirect consequences requiredthe Court to undertake a causative consideration of the effect of the conviction. TheCourt concluded:13Causation is a question of substance and degree, requiring judicial judgment.Like disproportionality, causation is an evaluative rather than a discretionaryconsideration.9 Bong v R, above n 7.10 Bong v R, above n 7.11 To similar effect is the decision of Rahim v R [2018] NZCA 182.12 Sok v R [2021] NZCA 252.13 At [44].[31] Mr Sok was the holder of a temporary entry class visa. His liability fordeportation originally depended not on conviction, but on an Immigration NewZealand character assessment. That assessment had been triggered by theadministrative requirement for a character waiver in connection with his applicationfor a partnership visa.[32] By the time the matter was before the Court Mr Sok's application for characterwaiver had been declined. Mr Sok's position was worse by then, as it is generally apre-requisite for a visa application that the applicant already holds a visa. The Courtconsidered, amongst other options available to Mr Sok, an application under s 61.Expert evidence had been put before the Court from an immigration adviser. TheCourt noted that that adviser's evidence was that:14 In his opinion applications under s 61 succeeded only in rare circumstancesand those which are "clouded" by issues of character almost always fail.In Mr Kruger's opinion a discharge without conviction would significantlyincrease Mr Sok's prospects of obtaining a visa under s 61 .[33] The Court noted that it did not find the evidence substantially helpfulprincipally because the decision did not turn on an estimate of the likelihood that MrSok would be deported. The Court was also unwilling to rely on predictions aboutwhat other decisionmakers such as the Minister may do. The Court observed:15To the extent that it is relevant, the risk of deportation is sufficientlyestablished by the facts that Mr Sok is unlawfully in New Zealand and mustrely on the Minister's s 61 discretion. The risk is plainly real.[34] Importantly for present purposes the Court later noted:16We elaborate briefly on our reluctance to predict what the Minister may do.Mr Kruger's evidence does not explain what analysis underlies his opinion thats 61 applications that are clouded by character issues almost always fail.Coincidence is not causation. Evidence that s 61 applications seldom succeed— a reasonable assumption given an applicant under s 61 has presumablyalready failed to secure a visa through normal processes — does not establishthat Mr Sok's will fail for character reasons, let alone because of hisconviction.14 At [36] and [37].15 At [55].16 At [56].And then later, concluding on the s 61 point:17Turning to the impact of a discharge on Mr Sok's application under s 61, wehave accepted that the Minister would consider the circumstances of theoffending and the humanitarian circumstances. We have assumed that theabsence of a conviction could have a positive influence on the mind of adecision-maker, but it cannot be said that a discharge would materiallyincrease Mr Sok's prospects of obtaining a visa under s 61. Put another way,were his application to fail it would not be in consequence of the conviction.[35] Similar reasoning applies to Mr Gasu's case. The difficulty he faces is that heis unlawfully in New Zealand.18 He can only obtain a visa under the Minister's graceon an application of s 61. Mr Gasu has already, and before the present offending,applied for and been declined under s 61, at a time when he was in a stable relationshipand had a child in New Zealand.[36] As in Sok, it cannot be said that a discharge would materially increase MrGasu's prospects of obtaining a visa under s 61. If his application fails it will not bebecause of a conviction. Even if Mr Gasu was successful on an application under s 61,or any subsequent application for a visa based on his partner's status he would need acharacter waiver. Mr Hoglund accepted that a main hurdle at that stage would be thecharacter waiver. As Ms Naseri accepted on any such application he would have todisclose the charge, even if granted a discharge without conviction.19[37] Ms Naseri sought to distinguish Sok on the basis that Mr Sok's offending wasmore serious than Mr Gasu's. However, the decision is relevant, not because of theconsideration of the gravity of the offending, but because of the approach the Courttook to the issue of causation in relation to the consequences of conviction.[38] In another recent decision, Anufe v Police, the Court of Appeal accepted thatin certain instances a discharge may be granted independently of the likelihood thatimmigration processes will actually end in deportation, but ultimately accepted that inMr Anufe's case, any risk of deportation was a consequence of the offending rather17 At [65].18 Ho v R [2016] NZCA 229.19 Sok v R, above n 9, at [46].than the conviction.20 The Court accepted that the immigration consequences of theoffending were a matter for the immigration authorities.21[39] Similarly, in the circumstances of Mr Gasu's case, I do not consider theconsequence of conviction to be relevant to Mr Gasu's chances of changing his currentunlawful immigration status.[40] If any further applications under s 61 were to fail, it would not be inconsequence of his conviction.[41] The offending is low to moderately serious, and the consequences ofconviction cannot be said to be out of all proportion to the gravity of the offending.Result[42] The Judge was correct to find that the consequences of the conviction were notout of all proportion to the gravity of the offending.[43] The appeal is dismissed.__________________________Venning J20 Anufe v Police [2021] NZCA 253.21 At [19].